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20:0148(16)CA - DOL, OSHA and Local 644, National Council of Field Labor Locals, AFGE -- 1985 FLRAdec CA

20:0148(16)CA - DOL, OSHA and Local 644, National Council of Field Labor Locals, AFGE -- 1985 FLRAdec CA

[ v20 p148 ] 20:0148(16)CA
The decision of the Authority follows:

20 FLRA No. 16
U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION
Respondent
and
LOCAL 644, NATIONAL COUNCIL
OF FIELD LABOR LOCALS AFGE, AFL-CIO
Charging Party
Case No. 2-CA-30121
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint, and recommending that
it be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the Respondent filed exceptions to the Judge's
Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations, only to the extent
consistent herewith.
The complaint alleged that the Respondent violated section
7116(a)(1), (5) and (8) of the Statute /1/ by conducting a formal
discussion, within the meaning of section 7114(a)(2)(A) of the Statute,
/2/ with bargaining unit employees without affording the exclusive
bargaining representative an opportunity to be represented at the
discussion. The record reflects that employees Francis X. Voycik and
Louis S. Cvetnich were among those bargaining unit employees attending
the November 16, 1982 meeting. Voycik was, at the time he attended the
meeting, a steward for the Charging Party and Cvetnich was a
vice-president. Moreover, it is unrefuted that Cvetnich was the
alternate Union representative designated to receive notice regarding
formal discussions, and that both Voycik and Cvetnich in fact
participated in the discussion that occurred.
In Veterans Administration, Veterans Administration Medical Center,
Muskogee, Oklahoma, 19 FLRA No. 122(1985), issued subsequent to the
Judge's Decision, the Authority concluded that actual representation by
an exclusive representative at a formal discussion is sufficient to
demonstrate compliance with the requirement of section 7114(a)(2)(A) of
the Statute that such an exclusive representative "be given an
opportunity to be represented." Relying on the rationale contained in
Veterans Administration, the Authority concludes that the Charging Party
was provided with an opportunity to be represented at the November 16,
1982 meeting on behalf of the exclusive representative, as evidenced by
the attendance and participation of both a steward and a vice-president
of the Charging Party.
Accordingly, as the record demonstrates that the Respondent complied
with the requirements of section 7114(a)(2)(A), it did not violate
section 7116(a)(1), (5) and (8) of the Statute as alleged, and the
complaint shall be dismissed in its entirety. /3/
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-30121 be, and it
hereby is, dismissed.
Issued, Washington, D.C., September 11, 1985
(s) HENRY B. Frazier III
Henry B. Frazier III, Acting
Chairman
(s) WILLIAM J. MCGINNIS JR.
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
---------------
LOWS -----
For the Respondent
Richard Clougherty
For the Charging Party
Lee Mingledorff, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case arose under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq.
Upon an unfair labor practice charge filed by Local 644, National
Council of Field Labor Locals, AFGE, AFL-CIO against the U.S. Department
of Labor, Occupational Safety and Health Administration (herein referred
to as Respondent or OSHA), the General Counsel of the Authority, by the
Regional Director for Region II, issued a Complaint and Notice of
Hearing alleging Respondent violated the Statute by conducting a formal
discussion with employees without affording the exclusive collection
bargaining representative an opportunity to be represented at the
discussion.
A hearing on the Complaint was conducted in Pittsburgh, Pennsylvania
at which all parties were represented and afforded full opportunity to
adduce evidence, call, examine and cross-examine witnesses and argue
orally. Briefs were filed by counsel for Respondent and the General
Counsel and have been carefully considered.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor and from my evaluation of the evidence, I
make the following findings of fact, conclusions of law and
recommendations.
At all times material herein the National Council of Field Labor
Locals, AFGE, AFL-CIO (herein referred to as the Union) has been the
exclusive representative of a nationwide unit of Respondent's employees
including various employees located at Respondent's Pittsburgh,
Pennsylvania OSHA Area Office. On November 12, 1982 employees were
notified by memorandum that on November 16 a staff meeting for all
employees of the Pittsburgh OSHA Area Office would be held. No
notification of this meeting was given to the Union by Respondent since
Respondent did not consider this meeting to be a formal discussion.
Employees were informed that the subject of the meeting would be an
October 1, 1982 document entitled "OSHA Objectives for 1983" (herein
"Objectives 83"), issued by Thorne G. Auchter, Assistant Secretary of
Labor for Occupational Safety and Health. Employees had previously been
furnished this document and were instructed to bring it to the meeting.
In "Objectives 83" Auchter summarized the status of OSHA's 1982
objectives and stated:
"Of our 16 agency objectives last year, six were completed
according to the criteria we had established. Substantial
progress was made toward meeting the other objectives, and the
appropriate portions of these other ten have been modified and
refined for incorporation and continuance in the FY 83
objectives."
"Objectives 83" continued:
"I would now like to give you an overview of our new objectives
for the upcoming fiscal year. You are being furnished with these
objectives so that you can contribute to the overall progress we
hope to make as an agency this year by directing your efforts in
areas where they are most needed.
"This year's FY 83 objectives are divided into six
effectiveness areas. You will notice the increased emphasis in
the areas of management, employer/employee assistance, state
programs, and federal agencies. We must also continue ongoing
efforts to improve our agency's efforts in the areas of compliance
and standards."
Auchter then went on to identify 14 agency objectives for 1983 which
included "Improved Consultation" and "Expanded Employer/Employee
Assistance." Improved consultation services were to be achieved through:
"Development and implementation of a system of prioritizing
requests for consultative services so that consultants are
directed toward those establishments where their service will have
maximum impact on OSHA's mission."
"Identification of critical consultant competencies.
"Development of agency guidance on what is expected of
consultant's performance.
"Development of a system to evaluate consultant's performance.
"Evaluation of pilot program (inspection exemption)."
Improved consultation services would be evidenced by:
"Increased competency of consultants.
"Increased demand for consultant services.
"Evidence of hazards abated as a result of consultative
visits."
Expanded employer/employee assistance was to be achieved through:
"Development of a public outreach program with emphasis on the
new worker factor.
"An expanded delivery system (T&E).
"Improved consultation services.
"Use of New Directions grants.
"Development of an ability to act as a safety and health
information resource center."
Expanded assistance would be evidenced by:
"More safety-health components in schools.
"An increase in participation in voluntary protection programs.
"Faster response to requests for safety and health
information."
Auchter's memorandum prescribed that " . . . all offices should
develop action plans that direct employee performance toward the
attainment of (the 14) objectives." The memorandum went on to state,
inter alia:
" . . . Although we must continue to enforce standards, we must
also expand our role by activating other elements that are
available in our program mix - elements such as training &
education, consultation, and voluntary compliance programs. By
expanding the approaches through which we offer assistance to
employers and employees and encourage compliance of them, we can
more successfully provide leadership and assistance for the
improvement of workplace safety and health conditions . . . "
Pursuant to Respondent's notice of November 12, Pittsburgh Area
Office Director Stanley Elliott met with approximately 25 employees in
the Pittsburgh Area Office library on November 16, 1982. /4/ A number
of supervisors were also present. Elliott, who had notes or an outline
in his hand, opened the meeting by having distributed to each employee a
folder. The folder contained various statistical compilations which
compared National, Regional, and Pittsburgh Area statistics for the
prior two years and the particular individual employee's statistics on
such matters as time spent inspecting, percent (of establishments?) not
in compliance and the percent of inspections resulting in "meaningful
compliance" in the areas of health, safety and construction. The
statistics also showed, among other things, the individual employee's
efforts regarding inspections, findings of compliance and incompliance,
citations issued and the nature of the citations.
After distributing the folder and congratulating the staff on their
accomplishments, Elliott reviewed the overall statistics. /5/ Various
questions were asked by employees regarding the meaning of the
statistics and the significance of an individual being below the
national average. Elliott responded that the office was "on target" and
only minor adjustments would be needed during the next year. After some
discussion on statistics took place, the goals set out in "Objectives
83" were also discussed. Elliott indicated that the Pittsburgh office
had to be more productive than in the past in terms of providing
services to the public. Elliott further explained that the direction at
OSHA was changing from being primarily enforcement oriented to a more
balanced approach by placing greater emphasis on employees playing a
consultative role and upgrading programs to secure voluntary compliance.
He indicated that there was some movement towards developing a resource
center in the Area Office where the public could visit and employees
would perform some sort of consultative service. Employees questioned
whether they would be able to meet the goals set out in "Objectives 83."
Although employees had always performed consultation to some degree, a
number of employees expressed concern as to how the new ratio of time
spent on office work and field work would affect their Performance
Review Evaluation and current job descriptions. Elliott expressed the
opinion that job descriptions should not be a hinderance and if the
Performance Review Evaluation was an obstacle, it could be changed.
In connection with their anticipated increased role as consultants
and the time required to engage in such activity, employees also
questioned whether they would have time to meet the requirements
contained in their performance standards that investigations must be
adequately documented as to legal sufficiency if a matter went to court.
Elliott indicated that extensive documentation was not necessary in
every case and both services could be delivered. A supervisor in the
audience stated he would have a problem accepting a case which was not
fully documented and Elliott questioned whether all cases needed to be
reviewed by a supervisor. Elliott suggested that cases in which there
was no contest need not meet the legal sufficiency test. If a matter
was contested, the case could then be documented to meet the legal
sufficiency requirement. Employees also expressed concern that an audit
of their work at some subsequent time might adversely reflect upon their
documentation but Elliott did not think this would be a problem.
After about an hour of discussion, the employees were then given
printed question sheets and divided into three teams. The questions
were to be discussed for about one hour in the groups in order to obtain
"inputs" from the field staff to better effectuate the program changes
envisioned by "Objectives 83." The employees were to return and report
to a plenary session thereafter. The questions presented were:
"WITHOUT REDUCING OUR PRESENCE . . . AND . . . WITHOUT REDUCING
OUR ENFORCEMENT PROGRAM . . . HOW CAN WE USE THE OTHER TOOLS
AVAILABLE TO US TO IMPROVE SAFETY AND HEALTH IN WESTERN
PENNSYLVANIA?
"TOOLS - training & education
consultation
voluntary compliance
"USING ALL OF THE ABOVE, HOW CAN WE ENCOURAGE ABATEMENT PRIOR
TO CSHO's DEPARTURE?"
When the employees reassembled in the library, team leaders reported
on their group's findings. During this discussion employees voiced
particular concern to Elliott that, in order to engage in the expanded
consultative role that "Objectives 83" envisioned, they would need to be
trained in this area. Elliott responded that OSHA training institutes
could provide this training. The session concluded after approximately
45 minutes.
Counsel for the General Counsel contends that the group meetings
which occurred on November 16, 1982 constituted a formal discussion
within the meaning of section 7114(a)(2)(A) of the Statute and
accordingly, Respondent's failure to notify the Union and afford it an
opportunity to be represented at the discussion violated section
7116(a)(1), (5) and (8) of the Statute.
Respondent denies that the November 16 staff meeting was a formal
discussion within the meaning of the Statute. Rather, Respondent
contends that the discussion which occurred during the November 16
meeting was "effectively" a reiteration of existing agency policy and,
if the meeting was a formal discussion within the meaning of the
Statute, the Union waived its right to be present at such meetings
during prior negotiations with Respondent.
I find and conclude that the November 16, 1982 staff meeting was a
formal discussion within the meaning of the Statute. /6/ The subject
matter of the discussion concerned performance statistics and employees'
duties, clearly matters encompassing "general conditions of employment."
Thus, the discussion involved greater productivity on the part of the
staff during the coming year; a greater emphasis on consultation and
obtaining voluntary compliance than in the past; the effect of such
anticipated greater emphasis on performance requirements and
evaluations; and what might constitute proper employee documentation of
cases for legal sufficiency in these circumstances. Employee training
to meet the demands of employees' changed role was also discussed,
indeed at the specific suggestion of the employer when it distributed
questions to employees, an objective of which was resolving how to
improve safety and health in Western Pennsylvania. /7/
The formality of the discussion is established in that the meeting
was (1) chaired by Respondent's Pittsburgh Area Office Director; (2)
attended by other supervisory employees; (3) took place in the library,
away from employees' work stations; (4) lasted a substantial part of an
afternoon; (5) called by advance written notice; (6) governed by a
specific agenda established by management; and (7) employees comments
were solicited. Thus, the circumstances herein establish that the
meeting constituted a formal discussion within the meaning of the
Statute wherein Respondent was obligated, but did not, afford the Union
an opportunity to be represented. U.S. Department of Housing and Urban
Development, 15 FLRA No. 89(1984); Department of Health and Human
Services, Social Security Administration, San Francisco Region, San
Francisco, California, 14 FLRA No. 96(1984); Defense Logistics Agency,
Defense Depot Tracy, Tracy, California, 14 FLRA No. 78(1984); Internal
Revenue Service (District, Region, National Office Unit), 11 FLRA No.
23(1983); Department of Health and Human Services, Social Security
Administration, -bureau of Field Operations, San Francisco, California,
10 FLRA 115(1982); and see Department of Health, Education and Welfare,
Region IV, Atlanta, Georgia and Department of Health and Human Services,
Region IV, Atlanta, Georgia, 5 FLRA 458(1981).
As stated above, Respondent contends that the meeting was essentially
a reiteration of existing agency policy and the Union waived its right
to be present at such meetings. To establish the waiver, counsel for
Respondent elicited testimony from Robert Hastings, Director of the
Office of Labor Relations, U.S. Department of Labor. Hastings testified
that he was Respondent's chief negotiator during negotiations between
management and the Union in 1978 and October 1982. The 1978
negotiations led to a master labor agreement and the 1982 negotiations
culminated in the execution of a memorandum of understanding clarifying
certain portions of the master agreement. Hastings testified that
during those negotiations the parties orally agreed that to constitute a
formal discussion under their contract, the discussion " . . . had to be
something more than a mere reiteration of an existing personnel policy
or practice and existing working conditions . . . " Hastings further
explained that to be a formal discussion, the discussion had to be more
than " . . . answering a question with regard to sick leave, for example
. . . where it was a mere reiteration of an existing regulation, an
existing policy, an existing working condition, or something that we had
already negotiated in this contract."
In an attempt to counter this testimony, Counsel for the General
Counsel elicited the testing of Richard Clougherty, President of Local
644 and a Vice-President of the Council prior to 1981. Clougherty
testified he was never advised of the existence of any such waiver even
though he was a member of the Union's national negotiating team in 1978
and was kept advised of the 1978 and 1982 negotiations, proposals and
arguments. However, Clougherty was not present at any of the 1978 or
1982 negotiation sessions.
Based upon the record herein, noting particularly the only testimony
elicited to challenge that of Hastings was that of Clougherty, who was
not present at the negotiating sessions in 1978 or 1982, I conclude
Respondent and the Union had an agreement as testified by Hastings.
Nevertheless, I conclude the agreement, or "waiver", did not privilege
Respondent to conduct the formal discussion found herein without giving
proper notification to the Union. The "waiver" went to discussions
which were a "mere reiteration" of existing working conditions.
However, the meeting of November 16 went substantially beyond a mere
reiteration of existing working conditions. Thus, a substantial portion
of the meeting was devoted to the agency's goals and employees'
responsibilities in achieving these goals during the coming year. Those
goals, as set forth in "Objectives 83," indicate that a change was
envisioned as to improving consultation services and expanding both the
role of employees in effectuating OSHA programs as well as the
approaches by which OSHA programs would reach the public. Thus,
according to that document, various 1982 objectives were "modified and
refined", "new" objectives were referred to, and "increased" emphasis in
various areas of endeavor and "improved" effort (although ongoing) in
other areas was highlighted. More specifically, the 1983 objectives
called for "improved" consultation and "expanded" employer/employee
assistance. The document set out action plans that directed employee
performance toward attainment of these objectives through expanded
approaches and expanded roles of employees.
Elliott's comments and responses to questions during the meeting
clearly convey that Pittsburgh Area Office was considering how to
implement the goals set forth in "Objectives 83." Elliott explained that
a more balanced approach to the work of OSHA regarding enforcement and
consultation was the thrust of "Objectives 83" and, by the questions
distributed to employees, wished to obtain staff views on how best to
effectuate the goals of "Objectives 83." While no substantial additions
or deletions in employees' job duties may have been directed by
"Objectives 83" or the discussion on November 16, the document and the
discussion clearly concerned a change in emphasis and how the change in
emphasis would impact on employees' existing duties. As indicated
above, such changes generated discussion concerning job descriptions,
performance standards and training.
In the circumstances herein, I find the primary subject of the
November 16 meeting was not merely a reiteration of existing personnel
policies, practices and working conditions. Rather, the discussion
concerned significant changes in emphasis on agency objectives as set
forth by Assistant Secretary Auchter for the coming year and how the
Area Office would comply therewith. Accordingly, I conclude that the
"waiver" claimed herein did not privilege Respondent from conducting the
formal discussion of November 16, 1982 without affording the Union an
opportunity to be represented at such discussion.
In view of the entire foregoing I conclude that Respondent, by the
conduct described herein, violated section 7116(a)(1), (5) and (8) of
the Statute and recommend the Authority issue the following:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the U.S. Department of Labor, Occupational
Safety and Health Administration, shall:
1. Cease and desist from:
(a) Failing or refusing to give the employees' exclusive
representative, the National Council of Field Labor Locals, AFGE,
AFL-CIO, the opportunity to be represented at formal discussions
with bargaining unit employees at which personnel policies and
practices or other general conditions of employment are discussed.
(b) In any like or related manner interfering with,
restraining, or coercing any employee in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Give the National Council of Field Labor Locals, AFGE,
AFL-CIO, the opportunity to be represented at formal discussions
with bargaining unit employees at which personnel policies and
practices or other general conditions of employment are discussed.
(b) Post at all facilities of the Pittsburgh Area Office of the
U.S. Department of Labor, Occupational Safety and Health
Administration, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt
of such forms they shall be signed by the Area Director or his
designee and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including all bulletin
boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal
Labor Relations Authority, 26 Federal Plaza, Room 24-102, New
York, NY 10278, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
(s) SALVATORE J. ARRIGO
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: August 15, 1984
Washington, DC
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF
TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
We hereby notify our employees that:
WE WILL NOT fail or refuse to give the employees' exclusive
representative, the National Council of Field Labor Locals, AFGE,
AFL-CIO, the opportunity to be represented at formal discussions with
bargaining unit employees at which personnel policies and practices or
other general conditions of employment are discussed.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce any employee in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
WE WILL give the National Council of Field Labor Locals, AFGE,
AFL-CIO, the opportunity to be represented at formal discussions with
bargaining unit employees at which personnel policies and practices or
other general conditions of employment are discussed.
(Agency or Activity)
Dated: By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 24-102, New York, NY 10278, and whose
telephone number is 212-264-4934.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1), (5) and (8) provides:
Section 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
* * * *
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/2/ Section 7114(a)(2)(A) provides:
Section 7114. Representation rights and duties
* * * *
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment(.)
/3/ In so concluding, the Authority finds it unnecessary to pass upon
whether the meeting was a "formal discussion" within the meaning of
section 7114(a)(2)(A) of the Statute, or whether the Charging Party
waived its right to representation in the circumstances of the case.
/4/ Elliott testified that he called the meeting to congratulate
employees on their past performance and to clarify and correct some
misconceptions a few employees had regarding "Objectives 83."
/5/ The following account, while generally a composite of the
credited testimony of those who testified on the matter, is based
primarily upon the testimony of employee William Draper. In addition to
his demeanor as compared with other witnesses giving testimony at
variance with that of Draper, I found Draper's testimony to be
substantially corroborated by the general thrust of other witnesses'
testimony and other evidence as well.
/6/ Section 7114(a)(2)(A) of the Statute provides:
"(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at -
"(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment . . . "
/7/ I do not find it particularly significant that the matters
covering working conditions discussed at the meeting were raised by
employee questions. Considering the avowed purpose of the meeting, it
was reasonable to expect that questions and discussions concerning
working conditions would occur. Cf. Federal Aviation Administration,
St. Louis Tower, Bridgeton, Missouri, 6 FLRA 678(1981) at 686.